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Killing 40 civilians in one go is “reasonable,” says Israel army ethicist

Palestinians mourn for eight members of the Bayoumi family, killed in an Israeli air strike on their building, during their funeral in Nusseirat refugee camp in the central Gaza Strip, 1 August 2014.

Ashraf AmraAPA images

Since the Israeli army killed more than 2,200 Palestinians in the besieged Gaza Strip last summer, including more than 500 children, a dedicated army of official and unofficial whitewashers has been mobilized on a mission to rescue Israel’s bloodstained public image.

Convened by the liberal Zionist New Israel Fund and moderated by Jane Eisner, editor-in-chief of the liberal The Jewish Daily Forward, the event was advertised as a discussion about “‘moral armies’ and the challenges of defensive wars in today’s new Middle East.”

Kasher and Halbertal co-authored the Israeli military code of ethics, which has guided the army’s conduct during Israel’s increasingly ferocious military assaults against the Palestinians it occupies as well as its neighbors over the last two decades.

The atmosphere was cozy and intimate, with randomly assigned dinner table seating. Each table was decorated with wine bottles and elegant food platters that aimed to foster “a new kind of conversation about Israel,” according to the program.

As the generally Israel-friendly crowd of mostly older New Yorkers sipped on Merlot and munched on pita chips from the comfort and safety of the JCC, they listened to the ethicists doing what they do best: twisting international law to sanctify Israel’s “right” to inflict limitless suffering on the 1.8 million Palestinians, the vast majority refugees, confined to the Gaza Strip solely because they are not Jews.

The ethicists

Appealing to right-wing Zionist sensibilities, Kasher dominated the discussion, arguing that Palestinian civilians—or as he calls them, “the neighbors of the terrorists”— had to die to protect the lives of Israeli combatants.

In an exclusive interview following the panel, Kasher’s extremism reached new heights. He told me that Givati Brigade commander Ofer Winter was right to carpet bomb the southern Gaza City of Rafah to prevent the capture of an Israeli soldier, an order that killed the soldier and 190 Palestinians in a matter of hours, though Kasher insisted that “only forty” were killed.

“Killing forty civilians” is “reasonable,” he told me.

Moshe Halbertal, a law professor at Hebrew University and visiting professor of law at New York University, was less extreme in his rhetoric and allowed for some criticism of Israel’s behavior in Gaza. But he chalked up Israeli atrocities, like the wiping out of dozens of families in Gaza, to “sporadic” mistakes. “War is messy,” he said.

Despite the pretense of ideological disagreement, Kasher and Halbertal were advancing the same agenda. For two hours, they explained why and how the massacre of defenseless Palestinians who have nowhere to flee is ethical, and in Kasher’s case, a moral imperative.

The most moral army in the world

Citing the Israeli prime minister’s repeated invocation of the Israeli army’s moral superiority, Forward editor Jane Eisner, who had declared her intention to ask probing questions, opened with: “Was Benjamin Netanyahu right? Is the IDF [Israeli army] the most moral army in the world?”

Halbertal rejected the “most moral army” talking point, not because he doesn’t agree with it, but because it is ineffective propaganda.

“It might be right, but … I find it empty as a moral political gesture,” he said, adding, “It sends a bad message” and “shuts down the listener.”

Kasher replied that the Israeli army embodies a higher level of values than the American, Canadian, French and British armed forces due to the inclusion of such concepts as the “sanctity of human life” and “purity of arms” in its code of conduct.

“These values are implemented in our doctrines, in our rules of engagement, in our commands,” said Kasher, pointing to Israel’s recent summertime slaughter as evidence.

“Operation Protective Edge,” as Israel calls its 51-day-long assault, killed 2,257 Palestinians. Some seventy percent of them were identified as civilians by the United Nations, including at least 519 children. In stark contrast, actions by or engagements with Palestinian resistance fighters killed 66 Israeli soldiers and seven civilians.

Both Kasher and Halbertal defended the lopsided death toll by stressing that the law of proportionately is not measured by body count.

Kasher explicitly rejected the civilian death count put out by the United Nations, maintaining that the majority of the dead were ”terrorists.” As far as he was concerned, Israel went above and beyond to avoid killing “the neighbors of the terrorists.”

Moreover, he asserted, Hamas was to blame for any and all Palestinian civilians killed by Israeli bombs.

Halbertal took a different approach. He embraced the UN death toll as proof that “a serious effort was done to minimize collateral harm and to target only combatants” on the grounds that Israel’s attack on Gaza was less indiscriminate than “the way the allies bombed Dresden” during the Second World War.

Modern estimates put the death toll from the systematic fire-bombing of the German city in 1945 at around 25,000 people, though historically much higher figures have commonly been cited.

Retired US Air Force Major-General Robert Latiff rarely spoke during the discussion except to concede that the Israeli army is indeed morally superior because it incorporates “the sanctity of life” in its values, whereas the US military code is an “implementation document … of classic concepts of Just War Theory.” Later in the program, Latiff confessed, “I don’t know Israeli officers or the IDF very well.”

A “deeply Jewish” response

As a highly influential professor of philosophy at Tel Aviv University, Kasher has spent his career assiduously bending international law and basic logic to absolve Israel of wrongdoing and to justify its most abhorrent practices.

In the Israel Yearbook on Human Rights 1985, Kasher argued that Israel’s openly discriminatory Law of Return—which grants those Israel defines as Jews from anywhere in the world the right to immigrate to and receive citizenship in present-day Israel, while actively blocking indigenous Palestinians from returning to the lands from which they were expelled — is a justified form of affirmative action for Jews.

From 1998 to 2006, Kasher sat on a committee that authorized anthrax experiments on Israeli soldiers. In response to a 2008 lawsuit filed by eighteen former soldiers forced to undergo experimentation, Kasher testified as an ethics expert that such experiments were permissible as long as the purpose is “building the military force.”

After “Operation Cast Lead” — Israel’s three-week-long assault on Gaza in the winter of 2008-2009 that killed 1,400 Palestinians, including some 400 children — Kasher rushed to explain how and why killing children on such a scale is permissible.

Killing a Palestinian child in Gaza, he argued, is permitted if it means taking out a hundred “terrorists” who might kill a child in Israel. “No one wants to harm a child, but refraining from attacking one hundred terrorists because of the child they hold means allowing them to continue attacking Israeli civilians—including children,” wrote Kasher. Moreover, he decreed, “Soldiers are not required to endanger their own lives in order to reduce the risk of harming a terrorist’s neighbors.”

This logic is more than dubious even if the neat premises it assumes are present, that one hundred “terrorists” are holding a single child. But these conditions bear no relation to the reality in Gaza where Israel indiscriminately bombed densely populated residential neighborhoods killing children in their homes, on beaches and en route to hospitals as well as in UN-run shelters. Rather, Kasher’s goal seems to be to provide unrealistic hypothetical situations which can be used to justify real-life carnage that bears no resemblance to them in neat utilitarian terms.

Kasher doubled down on this view in even more explicit terms following “Operation Protective Edge,” the name Israel gives to last summer’s even more bloody attack on Gaza.

Writing in the Fall 2014 issue of the Jewish Review of Books, Kasher called Israel’s conduct in Gaza a “deeply Jewish” response, recklessly and wrongly implicating Judaism in Israel’s atrocities — which he deemed to be in accordance with Jewish values of sanctifying life.

It “would be morally unacceptable” for Israel to put its soldiers in “greater jeopardy to save the lives of enemy non-combatants who have been repeatedly warned to leave the scene of battle,” maintained Kasher, adding that “Human shields may be attacked together with the terrorists.”

In Kasher’s conception of Palestinian spaces, people are never civilians and always somehow to blame for their own deaths. They are always “human shields,” never just ordinary people in their homes and communities, and of course Palestinians never have any sort of right to self defense or resistance.

Compassion can be shown, he allowed, but only if it does not increase the risk to Israeli soldiers or their mission.

Kasher’s extremism made Halbertal seem enlightened by comparison. But in reality he too justified wholesale slaughter, only he packaged it in the language of liberalism and human rights.

“Sporadic” slaughter

“There were cases in the war where targets were harmed and the killing was disproportionate,” Halbertal conceded as the panel wore on.

Commenting on the killing of some thirty Palestinians from the same family in a single Israeli airstrike, Halbertal said, “You know there couldn’t be a target that important to justify that sort of collateral harm in one attack.”

Israel exterminated 89 families in Gaza last summer. The UN documented a total of 140 families in Gaza partially or completely obliterated in Israeli attacks.

Still, despite his professed anguish, Halbertal chalked up the systematic annihilation of dozens of Palestinian families to “sporadic” and “episodic” accidents typical of the fog of war.

“War is a messy thing,” he shrugged. “Mistakes are made at war.”

But these massacres were hardly “sporadic.” Nor were they mistakes. According to an Amnesty International investigation, Israel knowingly bombed homes and buildings full of civilians without warning.

There was only one atrocity Halbertal did not excuse, and that was the execution of the Hannibal Directive in Rafah, marking one of the few points of disagreement between him and Kasher.

“Ofer Winter was right”

“Ofer Winter was right by declaring Hannibal and using a lot of artillery,” Kasher told me in an interview after the panel.

The Hannibal Directive is a classified Israeli military protocol that calls for massive firepower to prevent a captured Israeli soldier from being taken alive, even if it means killing the soldier and hundreds of civilians in the process.

The idea is to deny Palestinian or other Arab resistance groups a bargaining chip down the line while relieving Israeli leaders of the political fallout from having to make concessions — such as prisoner swaps — to secure the prisoner’s release.

Winter admitted to ordering the Hannibal Directive in Rafah on 1 August to prevent Palestinian resistance fighters from capturing alive a soldier who had gone missing, unleashing massive firepower that then killed 190 Palestinians, including 55 children.

Winter went on to boast to Israel’s largest newspaper that the carnage was a necessary punishment. “They simply messed with the wrong brigade,” he said at the time.

Kasher, who helped draft an amended version of the Hannibal Directive in the 1990s, denied that the procedure allows for the execution of a captured soldier. All of Israeli society, including top military commanders, simply misinterpreted the protocol as a call for executing one of their own, he insisted.

Nevertheless, Kasher maintained that Winter was right to carpet bomb Rafah because he felt the soldier’s capture was a catastrophe.

“The mistake was not in the proportionality considerations. The mistake was in [Winter’s] perception, which is common to almost everyone, that it was of strategic significance to have a soldier abducted. What he did was right on a wrong assumption,” said Kasher.

“Reasonable” slaughter

I reminded him that 190 Palestinian civilians were killed in Rafah on Winter’s order.

Shaking his head in disagreement, he said, “Forty. The UN is meaningless. Palestinian reports are meaningless. It was forty.”

“Where did you get that number?” I asked.

“The IDF,” he replied. “Killing forty civilians, where your arguments are that you avoided strategic catastrophe, is reasonable,” he added.

Asked if he was worried he might one day be charged with war crimes for writing the code of conduct that guides the Israeli army’s behavior in Gaza, Kasher scoffed, “I don’t worry at all. Public opinion is meaningless.”

He continued: “What counts is the president of the United States, the prime minister of England and the president of France, the head of Russia and the head of China. They count because they are the five members of the [UN] Security Council. The only thing internationally of importance is the Security Council. Those five have veto power, so they count. Most importantly, the president of the United States, he counts.”

When asked if he was alarmed by the calls for genocide emanating from Israeli lawmakers including Ayelet Shaked and Moshe Feiglin, Kasher said that Shaked was not in the Israeli government (her party, Jewish Home, is part of the ruling coalition) and dismissed Feiglin, who is deputy speaker in the Israeli parliament, as a “marginal” figure.

“Colonel Winter was mistaken in expressing himself as if all the troops are as religious as he is. Many of them are not,” said Kasher. “He mistakenly spoke in terms of ‘we’ instead of ‘I.’ But that’s it. Otherwise I don’t see a problem in his speech.”

Exploiting the Holocaust

Near the end of the program, Kasher predicted that some day soon Israel’s Iron Dome missile defense system would prevent one hundred percent of rockets fired from Gaza from landing in Israel. But even then, he said, Israel will be permitted to “cause a lot of collateral damage in order to improve the well-being of Israelis who feel under threat” for a long period of time.

Kasher closed out the program with a monologue heavy in Holocaust exploitation.

“My family immigrated to Palestine in the 1930s. So my family did not suffer from the Holocaust,” said Kasher. “But there is one lesson from the Holocaust that is in my heart and my thoughts, namely that it’s very good to have friends. It’s excellent to have the United States of America, the only superpower, as your strategic supporter and friend … . However, what we learned in World War II is that we ought to be prepared for a situation where nobody is going to come to our help. Nobody.”

“When we needed world support we did not get it. So now we ought to be able to defend ourselves when nobody will come to help us. And therefore we ought to be as strong as possible,” concluded Kasher.

But Prof Kasher in an interview with Israel Hayom on the 8th of August 2014: “To say that one rocket from Gaza or from the north means we failed, is a complete misunderstanding. In the new wars our goals can not be zero rockets. This is a complete misunderstanding of the situation. We have to reach a situation where our military action would create deterrence, and they will realize it does not pay them off to use their rockets.”

What does Kasher actually mean? “it is permitted to bomb an urban area, as crowded as it may be” to “created deterrence, and they (the resistance) will realize it does not pay them off to use their rockets.”

Jamal Daher, Chairperson of the Department of Philosophy at Birzeit University said: “Palestinian citizens, men, women and children, are the target of Israeli military operations. Meaning, in other words, that residential areas are not hit because of the presence of Palestinian resistance, but are a goal in itself.” – and that without being criticised.

“In the midst of a war criticism is a shot in the back.” Asa Kasher

So when is a good time to criticise Israel? According to Prof Kasher the answer is simple – Never.

A clue to understanding Prof. Kashers’s opinion about this question can be found back in 2004 when Israeli conscientious objectors started gathering together and writing various public letter explaining the reasons behind their objection. While discussing such letters in front of student in Ben-Gurion university, Prof kasher made the following statement:

“Such a thing as writing the letter is an act of breaking the law. It is civil disobedience. In a democracy there is supremacy of compliance with the law”2

“And it is also not permissible to criticize the army during the war,” says Jamal Daher “Even the title Prof Kasher’s opposition gave him – ‘Occupation Philosopher’ – is not quite accurate, Prof Kasher does not speak as a philosopher but he is also not only The Occupier, but The Fascist Occupier.

Thank you for an excellently researched article! Just one mistake, if I may. The figure you give for the victims, mostly civilian and refugeed, of the Allied bombing of Dresden is obviously a typing error. The one most historians accept is astronomically higher than that, as you know. So, thanks also for the unintended humor--some errors are just irresistibly funny!

Thanks Anthony. The estimate of 25,000 is much lower than figures that have been cited historically, but it is based on the official 2010 Dresden Historical Commission report. So it’s not a mistake. In any case, there is no doubt that systematic bombing of German cities killed hundreds of thousands of people — deliberately. I’ll switch out the link in the post to the one I’ve included in this comment.

Who are you to claim that there is no Palestine and Palestinians , you just want to justify the crimes of Israel by ignoring our existence and concealing our history ? You and many like you will pay the price for this kind of ideologies ? you will go to face the same fate as the Nazis and South African apartheid regime.

im sorry you misinterpreted my satire. My statement was making a mockery of the Israeli propaganda as they always claim ther was no Palestine, etc. There certainly was a Palestine, and Palestinians living there for centuries. They were certainly murdered, displaced, and relocated to camps or Gaza as a result of the declaration of Israel. Everything coming out of Israel is a vain attempt at justifying its existence, when one looks at history. As an American, I can appreciate your contempt. Most of the population here believes what ever Bibi feeds to our press. Our lawmakers never object because they are in power thanks to the jewish lobby and big money donors!

In response to the New York meeting justifying IDF carnage of Palestinians, it is self evident that Israeli policy is now going for broke, ie, the annexation of the whole of Palestine by any means available including genocide and the making of any political solution impossible. Let us hope that Israeli ideologues, military personnel and politicians are not as immune from public opinion and prosecution as they claim.